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Gulab Singh Vs. Dhanraj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 266/1982
Judge
Reported in1982WLN609
AppellantGulab Singh
RespondentDhanraj and ors.
Cases ReferredIn T.B. Barret v. African Products Ltd.
Excerpt:
civil procedure code - section 35b--costs--payment of costs not made on account of bonafide mistake or inadvertent error--no serious prejudice caused to other party--held, court should not take extreme step of closing evidence;the introduction of such a provision was not intended to completely oust the jurisdiction of the court to condone a lapse in the conduct of litigation by a party, in not making payment of cost on the next date fixed in the suit, on account of a bonafide mistake or an inadvertent error of for reasons beyond his control. of course, the court may debar the further prosecution of the plaintiff's case, if the plaintiff is at fault or of the prosecution of the defence, if the defendant is at fault, in making payment of the amount of costs determined by the court, yet the..........the other party in respect of the expenses incurred by him in attending the court on that date and payment of such costs, on the date next following the date of such orders, shall be a condition precedent to the further prosecution of:(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs;(b) the defence by the defendant, where the defendant was ordered to pay such costs.4. in anand prakash's case (supra), full bench of the punjab and haryana high court took the view that the word 'shall' occurring in section 35b(1) renders the provision mandatory and that if the costs are not paid on the date next following the date of the order imposing such costs, the court is bound to disallow the further prosecution of the suit or the defence as the case may be......
Judgment:

Dwarka Prasad Gupta, J.

1. A sum of Rs. 40/- was awarded as costs to the defendant opposite party 01 February 10, 1932 as the plaintiff petitioner did not file the list of his witnesses nor his witnesses were present in the court while the case was fixed for recording his evidence on that date. On the next date fixed in the case i e. February 22, 1982 the plaintiff prayed for further time to produce his evidence and to make payment of costs. The time was allowed with consent of the learned Counsel for the defendant. Similarly, time was again allowed to the plaintiff for producing his evidence and for payment of costs on April 24. 1982. The case was then fixed for July 29, 1982 and on this date the plaintiff again asked for an adjournment but the defendant objected to it on the ground that the earlier costs had not been paid. The plaintiff was prepared to make part payment of the sum of Rs. 20/- but the learned Counsel for the defendant was not prepared to accept incomplete payment of the amount of costs. In these circumstance, the trial court closed the evidence of the plaintiff.

2. In this revision petition the learned Counsel for the plaintiff-petitioner submits that the plaintiff does not desire to examine any other witness except the plaintiff himself and he is prepared to pay costs of Rs. 30/-which were awarded on February 10, 1982 any other amount of costs which the court may consider necessary to impose for the adjournment of the case on July 29, 1982. It is submitted by the learned Counsel for the petitioner that on July 29, 1982 the plaintiff had only Rs. 20/- with him and as such he prayed merely for a short time for making payment of the remaining part of the amount of costs, but the trial court took a very stringent view of the matter and closed the plaintiff's evidence on that date. Learned Counsel for the defendant-opposite party relied upon the provisions of Section 35B(1) C.P.C. and also placed reliance upon the Full Bench decision of the Punjab and Haryana High Court in Anand Prakash v. Bharat Bhusan Rai while supporting the order passed by the trial court.

3. Section 35(B)(1) of the Code of Civil Procedure runs as under;:

35-B(1)-If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit:

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground.

The Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court be, reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date and payment of such costs, on the date next following the date of such orders, shall be a condition precedent to the further prosecution of:

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs;

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

4. In Anand Prakash's case (supra), Full Bench of the Punjab and Haryana High Court took the view that the word 'shall' occurring in Section 35B(1) renders the provision mandatory and that if the costs are not paid on the date next following the date of the order imposing such costs, the court is bound to disallow the further prosecution of the suit or the defence as the case may be. However, an exception was made, even by the learned judges constituting a majority in the aforesaid case, namely, if the costs were not paid as a result of circumstances beyond the control of the defaulting party and it was held that then the court would be well within its jurisdiction to exercise the power under Section 148 of the Code in favour of the defaulting party, considering that an appropriate case is made out for the exercise of its jurisdiction under the aforesaid provision. The Judges constituting the majority of the Punjab and Haryana High Court proceeded to over rule the Division Bench judgment of that very Court in Manjeet Singh v. State Bank of India and also three single Bench judgments of that court in Hakmi v. Pitamber AIR 1978 P&H; 145, Manak Chand v. Suresh Chandra AIR 1979 P&H; 229 and Hikka Singh v. Puran Singh 1979 PLJ 535.

5. In my humble view, Section 35B(1) was not introduced in the Code with the intention of cutting down the scope of the power conferred upon the court by the provisions of Section 148 of the Code, under which the court could enlarge, in its discretion, any period fixed or granted by it for doing of any act prescribed or allowed by the Code, even though the period originally granted might have expired. It should always be remembered that all rules of procedure are meant to be hind maids in the administration of justice. The provisions relating to procedure, in my humble view, should not be construed in such a manner as to defeat the interests of justice. In M/s Babber Sewing Machine Co. v. Trilok Nath Mahajan : [1979]1SCR57 their Lordships of the Supreme Court, while referring to the application of Order 11. Rule 21 C.P.C. observed:

It does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI Rule 21, unless the court is satisfied that the plaintiff was wilfully with holding information or refusing to answer interrogatories or by withholding the documents which he ought to discover...

In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order XI Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party....

An order striking out the defence under Order XI Rule 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court, and may be made use as a last resort.

A bare reading of the provisions of Section 35B(1) C.P.C, goes to show that if the amount of costs is not paid on the date next following the date on which the order imposing such costs was passed, then such payment of cost shall be a condition precedent to the further prosecution of the suit by the plaintiff, where the plaintiff was ordered to pay such costs or the further prosecution of the defence by the defendant, in case the defendant has been ordered to pay such costs. The plaintiff may not be entitled to further prosecute if he fails to make payment of costs awarded and the defendant may not be entitled to prosecute his defence further, in case of his failure to make payment of the amount costs. But in either case the court is not precluded from extending the time fixed for payment of costs under Section 35B(1) C.P.C.

6. In Mahantram Das v. Ganga Das : [1961]3SCR763 their Lordships of the Supreme Court observed as under:

Such procedural orders, though peremptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medas and the Pershians. Cases are know in which Court have moulded their practice to meet a situation such as this and to have restored a suit or proceedings, even though a final order had been passed.

7. In Jai Ram Manohar Lal v. National Building Material Supply Gurgaon : [1970]1SCR22 their Lordships of the Supreme Court observed as under:

Rules of procedure are intended to be a handmaid to' the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been first omission, and however, late the proposed amendment may be allowed if it can be made without injustice to the other side.

8. In Sangram Singh v. Election Tribunal Kotah : [1955]2SCR1 while referring to the procedural provisions of the Code of Civil Procedure, their Lordships of the Supreme Court observed as under:

Now a code of procedure roust be regarded as such. It is, 'procedure, something designed to facilitate justice and furthers its ends, not a penal enactment for punishment and penalties, not a thing designed to trip people up. The technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice-is done (both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

(Emphasis added)

9. In Shri Kashi Biswanath Dev v. Parmannda Routrai : AIR1982Ori80 a learned Judge of the Orissa High Court dissented from the view taken by the majority of the learned judges constituting the Full Bench of the Punjab and Haryana High Court in Anand Prakash's case and agreed with the view taken in the earlier Punjab and Haryana Cases referred to above. It was observed in Kashi Bishwanath Dev's Cases AIR 1982 Orissa 80 that the cause of justice was paramount and a procedural law cannot be raised to the pedestal of being such a mandatory provision as would take away the Court's right in a given case to exercise its discretion in the interests of justice.

10. It must not be lost sight of that our rules of procedure are founded upon principles of natural justice, which require that man should not be condemned unheard; that decision should not be reached behind their back; that proceedings affecting their lives and property should not be continued in their absence, without affording them reasonable opportunity of hearing; that he should not be precluded from participating in the proceedings. There would no doubt be exceptions to the general rules and where they are clearly defined, they must be given effect to Subject to exceptions, by and large our laws of procedure should be construed, where ever it is reasonably possible to do, so to advance the cause of dispensation of justice and not to retard it. In T.B. Barret v. African Products Ltd. AIR 1928 PC 262 Lord Buck-Master, speaking for the Judicial Committee of the Privy Council observed that no forms of procedure should ever be permitted to exclude the presentation of a litigant's defence. The principles which should invariably be followed by a court is that unless the conduct of a litigant suffers from contumacy or willful negligence or discloses deliberate delay knowingly caused, he should not be deprived of an opportunity of prosecuting his case or defence. In all such cases, where the default of the party can be compensated by costs being paid and no serious or substantial prejudice likely to be caused to the other party, the court should not take a very strigent view and deprive the litigant of his right to prosecute the suit or his defence thereof. After all, the rules of procedure are intended to secure proper administration of justice and they should, therefore, subserve the interest for which they are meant and not defeat the very purpose for which they are made, Of course cases of wilfull default or of inordinate, prolonged or inexcusable delay or of contumacious conduct or deliberate attempt to disregard or disobey the order of the court must clearly form exceptions to the aforesaid general rule. As matter of fact the procedural laws must subserve the interests of justice and fair play and are not intended to stullify the dispensation of justice.

11. Section 35B has undoubtedly been introduced in the Code by the Amendment Act of 1976 for the purpose of controlling the conduct of the parties in civil litigation and to overcome the deliberate attempts of parties to cause inexcusable and inordinate delay in the disposal of civil cases. It was desired the civil cases, which are ordinarily taking over long time in disposal, should be deligently prosecuted and should be expeditiously decided. It was with that end in view that the legislature introduced the provisions contained in Section 35B(1). But the introduction of such a provision was not intended to completely oust the jurisdiction of the court to condone a lapse in the conduct of litigation by a party in not making payment of costs on the next date fixed in the suit, on account of a bonafide mistake or an inadvertant error or for reasons beyond his control. Of course, the court may debar the further prosecution of the plaintiff's case. if the plaintiff is at fault or of the prosecution of the defence, if the defendant is at fault, in making payment of the amount of costs determined by the court; yet the defaulting party can request the court to grant further time or a reasonable opportunity for the purpose of making payment of the amount of costs and if the other party can be compenstated by payment of further costs and no serious or substantial prejudice is likely to be caused to the other party, The court should not take the extreme step of shuting the prosecution of the case filed by the plaintiff or the defence of the defendant, as the case may be.

12. For the aforesaid reasons, I find myself in agreement with the view taken by the learned judge of the Orissa High Court in Kasi Bisvanath Dev's case : AIR1982Ori80 and with great respect express my dissent from the view taken by the majority of the judges of the Punjab and Haryana High Court in Anand Prakash case . In my humble view, the earlier Punjab and Haryana cases were correctly decided and the minority view in Anand Prakash's case regarding the interpretation of the provisions of Section 35B(1) C P.C. appears to be justified. In the present case, no prejudice has been caused to the defendant by the delay and he can be amply compensated by payment of costs for the lapse on the part of the plaintiff

13. In the result, the revision petition is allowed, the order passed by the learned Munsif dated July 29, 1982 is set aside. However the plaintiff is directed to pay a sum of Rs. 50/- to the defendant as costs, in addition to a sum of Rs. 30/- which was imposed as costs on February 10, 1982. The amount of Rs. 80/- towards costs should be paid by the plaintiff within two weeks. The payment of costs shall form a condition precedent to the further prosecution of the suit by the plaintiff. It may be made clear that the plaintiff will not be entitled to examine any other witness except himself in his evidence. The parties are left to bear their own costs of this revision petition. The record of the trial court be sent to that court immediately.


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